United States District Court, W.D. Kentucky, Owensboro Division
OWENSBORO HEALTH FACILITIES, L.P. d/b/a TWIN RIVERS NURSING AND REHABILITATION CENTER, et al PLAINTIFFS
BRUCE CANARY AND SUE BOEMAN, AS CO-ADMINISTRATORS OF THE ESTATE OF HELEN CANARY, DECEASED DEFENDANTS
MEMORANDUM OPINION AND ORDER
H. MCKINLEY, JR. CHIEF JUDGE
matter is before the Court on Plaintiffs Owensboro Health
Facilities, L.P., d/b/a Twin Rivers Nursing and
Rehabilitation Center, Preferred Care Partners Management
Group, L.P., Preferred Care of Delaware, Inc., d/b/a
Preferred Care, Inc., and Kentucky Partners Management,
LLC's (“Plaintiffs”) motion to compel
arbitration and enjoin Defendants [DN 5], and the motion by
Defendants Bruce Canary and Sue Boeman, as co-administrators
of the estate of Helen Canary, to dismiss [DN 10]. Fully
briefed, these matters are ripe for decision.
Canary was a resident of Twin Rivers Nursing and
Rehabilitation Center (“Twin Rivers”) from
February 9, 2013, until August 3, 2015. On May 6, 2009, well
before Canary was a resident at Twin Rivers, she executed a
“Durable General Power of Attorney” in which she
named her daughter, Betty Greenwell, as her attorney-in-fact.
[DN 1-3]. This power of attorney granted Greenwell the power
execute, acknowledge, seal, and deliver any deeds, mortgages,
leases, contracts, liens, releases or other instruments in
any form my attorney-in-fact deems proper . . . to file,
prosecute, enforce, defend, answer or oppose all legal
proceedings in any matter in which I have any interest or
concern; to compromise or engage in any kind of alternative
dispute resolution regarding any matter . . .
(Durable General Power of Attorney [DN 1-3] ¶¶ 4-5)
(subdivisions omitted). With this power of attorney,
Greenwell (now named Betty Hatfield [DN 1-4]) executed the
paperwork for Canary upon her admission to Twin Rivers on
February 9, 2013.
with Canary's admission paperwork was a form titled
“Alternative Dispute Resolution Agreement -
Kentucky” (“ADR Agreement”). [DN 1-1].
Under the title, the form states in bold text and capital
letters, “Signing this agreement is not a condition of
admission to or continued residence in the center.” The
form states, in pertinent part, that
[t]he Parties voluntarily agree that any disputes covered by
this Agreement . . . that may arise between the Parties shall
be resolved exclusively by an ADR process that shall include
mediation and, where mediation does not successfully resolve
the dispute, binding arbitration. . . .
This Agreement applies to any and all disputes arising out of
or in any way relating to this Agreement or to the
Resident's stay at the Center that would constitute a
legally cognizable cause of action in a court of law sitting
in the Commonwealth of Kentucky and shall include, but not be
limited to . . . tort; breach of contract; fraud;
misrepresentation; negligence; gross negligence; malpractice;
death or wrongful death and any alleged departure from any
applicable federal state, or local medical, health care,
consumer or safety standard. Covered Dispute shall include
the determination of the scope of or applicability of this
Agreement to mediate/arbitrate.
(ADR Agreement [DN 1-1] ¶¶ 3-4).
November 30, 2016, the Defendants filed an action in Daviess
Circuit Court against the Plaintiffs in this case, as well as
two administrators at Twin Rivers and three unknown
defendants. [DN 1-2]. This action asserts claims of
negligence, medical negligence, corporate negligence, a
violation of long-term care resident's rights, and
wrongful death. The Plaintiffs then filed the present action,
seeking enforcement of the ADR Agreement [DN 1], and they
subsequently filed a motion to compel arbitration and enjoin
the Defendants. [DN 5]. The Defendants have filed a motion to
dismiss the present action. [DN 10].
Motion to Dismiss
Court begins with the Defendants' motion to dismiss. The
motion makes numerous arguments in favor of dismissal, but
all of the asserted grounds for dismissal have been raised by
defense counsel in other cases before this Court and others,
and they have been denied by the courts in those cases.
E.g., Owensboro Health Facilities, L.P. v.
Henderson, 2016 WL 2853569 (W.D. Ky. May 12, 2016);